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TMI Blog2023 (6) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- only and therefore, the basic information is yet again wrong and mentioned in reasons without application of mind. We find that the issue is squarely covered in favour of the assessee by the judgments rendered in the case of Mumtaz Hazi Mohmad Menon [ 2018 (10) TMI 366 - GUJARAT HIGH COURT] as held that the assumption of jurisdiction on the basis of wholly incorrect facts cannot be conferred in law. In this case also, the reasons cited were that the assessee did not file return and the capital gain on sale consideration was not brought to tax which reasons were found to be factually incorrect. The assessee had return of income which was not noticed by the AO. Assessee appeal allowed. - I.T.A No. 3137/DEL/2018 - - - Dated:- 17-4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age Dasana for Rs.98,76,000/- as against the circle rate of Rs.1,56,99,500/-. It was alleged that capital gain was derived from the said transaction but ITR was not filed resulting in escapement. The income was assessed at Rs.72,11,880/- by an ex-parte order under Section 144 r.w. Section 147 of the Act. 4. Aggrieved, the assessee preferred appeal before the CIT(A). The CIT(A) however upheld the assumption of jurisdiction assumed under Section 147 but however granted partial relief on merits. 5. Further aggrieved, the assessee preferred appeal before the Tribunal. 6. We have carefully considered the rival submissions on the point in issue and perused the assessment order as well as the first appellate order. We have also perused th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2009-10 has escaped assessment within the meaning of section 147 of the Income Tax Act , 1961. Issue notice us 148 of the I .T. Act , 1961. 9. With reference to the reasons recorded as noted above, the ld. counsel for the assessee submits at the outset that the belief towards escapement has been entertained by the Assessing Officer on the basis that the assessee has not filed the return of income for Assessment Year 2009-10 which is grossly contrary to facts on record. The assessee had duly filed return of income on 31.03.2009 thereby the most basic reason itself is wholly incorrect and not existed and noticeably PAN of the assessee was duly mentioned in sale deed. Secondly, the sale consideration of Rs.98,76,000/- was givi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainable in law. 11. In the light of the aforesaid judgments declaring the position of law, we find merit in the plea of the assessee towards inherent lack of jurisdiction under Section 147 of the Act. In the instant case also, the assessee had filed return of income and declared the transaction arising on sale of property which fact was not taken cognizance by the Assessing Officer while reopening the assessment. 12. The reopening proceedings itself being not permissible on the basis of inherently wrong facts, we do not consider it necessary to delve the merits of the addition. We thus set aside the action of the CIT(A) and quash the re-assessment proceedings giving rise to the present appeal. 13. In the result, the appeal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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